How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest significant time and money in numerous medical malpractice lawsuits. This investment covers physician time and work product as well as attorney time, court costs, expert witness fees, and countless other expenses.

An injury caused by the negligence of a healthcare professional's mistake, or omission can lead to a medical malpractice claim. The injured party can seek compensation for economic losses, like past or future medical expenses, as well as noneconomic damages, medical malpractice such as pain and discomfort.

Complaint

A medical malpractice case has many moving parts and requires reliable evidence to win. The person who was injured or their lawyer in the event that the patient has passed away must show each of these legal elements:

The defendant violated this duty. That the defendant breached that duty. That the breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a duty of care will not in itself cause injury. It must be proven that it directly caused the injury and was the proximate reason for the injury.

It is often required to file a complaint with a state medical board in order to protect the rights of the patient and ensure that the doctor does not commit any further errors. However, filing a claim does not start a lawsuit and is often just a beginning step in getting the malpractice claim moving. It is usually recommended to speak with an Syracuse lawyer for malpractice before filing a report or any other document.

Summons

A summons or claim is filed in a courtroom and sent to the defendant doctor as part of the legal procedure. A lawyer appointed by the court on behalf of the plaintiff will then look over the documents and, if it is found that there may be a case of malpractice then they will submit a complaint and an affidavit to the court detailing the medical malpractice law firm error that they believe to have committed.

The next step is to gather evidence through pretrial disclosure. This includes making requests for evidence, such as hospital billing and clinic notes, as well as taking the deposition of the defendant's doctor. Attorneys will then ask the defendant under oath about his or her knowledge regarding the case.

The information provided will be used by the plaintiff's lawyer to prove elements of a medical malpractice claim during trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the physician to provide care and treatments to patients, the doctor's infraction of this obligation, a causal link between the breach and injury or death of the patient and the amount of damages to warrant a monetary award.

Discovery

During the discovery process, both sides are entitled to request and receive evidence relevant to the case. This includes medical records prior to and after an incident of negligence, details about experts and medical malpractice tax returns or other documents related to expenses out of pocket the plaintiff claims to have caused, and the names and contact information of witnesses who will testify at trial.

Most states have a statute-of-limitations that limits the time a patient has to seek compensation for injuries caused by an error made by a doctor. These time limits are determined by state laws and are subject to a rule called the "discovery rules."

In order to win a medical negligence lawsuit, the injured patient must show that the doctor's negligence resulted in specific harm such as physical pain, or loss of income. They must also prove causation -- that is, that the negligent treatment was directly responsible for their injury or death.

Deposition

Depositions are question and answer sessions that take place in the presence of a court reporter who documents both the questions as well as the answers. The deposition is an element of the discovery process, which is about gathering information that can be used in the course of a trial.

Depositions allow attorneys to question witnesses, often doctors to answer a set of questions. When a physician is deposed to testify, he or she must answer each question truthfully under an oath. Typically, the doctor is first questioned by an attorney and then the attorney is cross-examined by another attorney. This is a crucial step in the trial and the physician must pay attention to it with all their heart.

A deposition is a great way for attorneys to get an extensive background on the doctor, including his education, training and experience. This information is essential to showing that the doctor violated the standards of care in your case and that the breach directly resulted in injury. Physicians who have been educated in this field will typically declare that they have knowledge of certain techniques and procedures that could be relevant to a specific medical-malpractice case.

Trial

Your lawyer will file a complaint with the court and a summons. This begins a legal process of disclosure, referred to as discovery where you and the doctor's team collaborate to collect information to prove your case. This evidence typically includes medical records as well as testimony from expert witnesses.

To prove malpractice, you must establish that your doctor's actions did not meet the standards of care. Your lawyer must convince the jury that your injuries could be avoided if your doctor had followed the standards of care. The lawyer for your doctor will present defenses that contradict the evidence presented to you by your attorney.

Despite the legend that doctors are targets for frivolous malpractice claims, decades of empirical research shows that jury verdicts tend to reflect fair assessments of negligence and damages and juries are skeptical of damages that are exaggerated. The vast majority of malpractice cases settle prior to trial.